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1806. prosecution against Mr. Justice Johnson: and as the statute of 44 Geo. III. c. 3. s. 92. was the new

was not found, then and not till then, was parole evidence of the contents of such papers admitted. But in the present case, the witness was received to give evidence of the contents of a paper, which he admitted he had never searched for in the place, in which it was most likely to be found, viz, in the printing-office, to which he had himself sent it, but that he had searched for it in the place, where certainly it could not have been found, viz. his own house, whence he had sent it. This decision therefore forms an entire new rule of law. As to reading a paper against a defendant, in order to shew its libellous tendency, the former rule was laid down by Lord Mansfield, (5 Burrows, 2689) that publication must first be proved; for the paper cannot be read until it be first proved to have been published. But in the present case, publication was proved by first reading the paper, in order to prove, from its internal evidence, as it was called, that it had been published. The former rule of law therefore and the latter are directly the reverse of each other. The first regulating, that in order to read, publication must first be proved.' The second deciding, that in order to prove publication, you may first read. This last therefore is a new discovery in the law of England. Considering it in the plain light of common sense, this last seems a most extraordinary rule. That the contents of a paper may afford conclusive evidence of intention, must be at once admitted. But that the contents of a paper should afford evidence of the execution of an uct, which never can have its commencement until after the writing is totally finished, seems to confound all understanding of the nature of physical and meta- ́ physical evidence. Again, let it be supposed, that this rule had existed as a rule of law at the time of the case of the seven bishops. The rule now, according to the reported case of Mr. J. Johnson is, that the contents of a paper may be read against a party before publication is proved, and in order to prove publication, from the internal evidence (as it was called) of the contents of the paper. Suppose then this rule had existed at the time of the case of the seven bishops. The paper of the bishops was proved to

invented engine, by which he was to be tortured and punished for those reflections, it is a fact not

have been written by them, but in Surrey. It was found in the King's hand in Middlesex. This was insisted on, as evidence of a publication in Middlesex. But the Court denied it. But suppose the Council for the Crown had insisted upon reading the paper, to shew from the internal evidence of its contents, that publication had taken place in Middlesex. No paper, that ever existed could have gone so far under the circumstances to raise a presumption of publication in Middlesex by the bishops. It was a petition directed to the King by the bishops. Could any circumstantial evidence have gone so far to prove the fact of delivering, i. e. of publication by the bishops? But the Cout refused to let presumptions alone go to the Jury of such a fact. It must be proved. The Counsel for the Crown at that time, did not venture to offer to read the paper before publication was proved, in order to prove it by internal evidence. The Council did not venture to offer, and the Court would not have ventured to receive it. We must now suppose the rule of law to have been since changed; because (at least as it has been reported) a different Tule has been promulgated in times of the utmost light and of the atmost purity. The case of the seven bishops was mentioned at the trial of Judge Johnson, was insisted on as a precedent supporting the case of the defendant. But it was denied, and (as it is reported) a singular distinction was taken by the Court, in order to found a different rule of evidence from that precedent. In page 67, of the reported trial, the Chief Justice, in comparing the cases of the seven bishops and of Mr. Judge Johnson, is made to say, But what was the paper itself? a libel. No; it was a fair, decent loyal remonstrance to his Majesty, &c. This petition indeed was called a libel; but was that a libel? No: not unless the act of publishing it could be called a libel; but where is the ANALOGY between that case and this? Here is a paper, which every body admits to be a libel published in the county of Middlesex'; and if the thing be a libel, as undoubt→ edly it is, the only question is, whether the defendant procured it to be published in the county of Middlesex? It is to be ob

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unworthy of notice, that the two foremost persons upon the committee for bringing in that bill, were

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served, that the bishops, as well as Mr. Justice Johnson, were indicted or informed against, not only for publishing, but for causing or procuring to be published, according to the usual form. There the analogy is perfect. But the Chief Justice observes, the cases are not analogous. Therefore the difference must be in some other circumstance. Where then is the difference? Why, in what it is reported the Chief Justice stated; namely, that the paper of the bishops was not a libel, and that the paper of Mr. Justice Johnson was a libel. Now we cannot suppose this distinction taken by the Chief Justice impertinent to the question then before the Court. What was that question? Whether evidence different from that of the bishops case should be received, on Judge Johnson's case? And different evidence was received to prove the same issue, as the charges in both were the same. Upon what ground was that different evidence received? Upon the difference of fact upon the two cases. What was that difference of fact? Why that one paper was a libel, and the other paper was not a libel. Therefore this GENERAL RULE in the law of England seems to be established. That a paper, which is a libel, may be proved against a defendant, by totally different evidence from a paper, which is not a libel, and that the proof of a paper writing, varies according to the tenor or contents of that paper. A new ryle!

'The next rule, which may be drawn from comparing different parts of the trial together, is as follows. Upon that part of the case, (p. 32 and 33.), wherein the evidence was offered of the contents of that letter, which contained the first overture to Cob, bett to publish, and of the similitude of its hand-writing to the subsequent letters, the printed report of the trial gives the following observation to the Chief Justice. This is really nothing more, than to account for the letter being directed in a particu Jar manner, and really it is hardly worth a contest. As to the hand-writing in that letter, there is nothing in this evidence to affect the defendant, and it does not signify a farthing. But in page 118, where the Chief Justice charges the Jury, the report of

Mr. Perceval, the brother-in-law of Lord Redesdale, and Mr. Yorke, the brother of Lord Hard

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the trial gives him upon the same part of the evidence, viz. the overture, the following words. The next evidence is that, which relates to the fact of the hand-writing. "This evidence is NECESSARILY COUPLED with the OVERTURE made to Mr. Cobbett, and "the fact is to be made out by proof, that the defendant was ac"tually the writer of the libels." From comparing the observation as that of the Chief Justice at the time of the offer, and admission of the evidence respecting the overture, with the charge upon that same evidence after it was so admitted, the following conclusion arises. That evidence, which upon being offered is declared by the Court, that it can in nothing affect the defendant, and that it does not signify a farthing, may become NECESSARILY COUPLED with the only evidence, which directly affected the defendant, namely, the evidence of hand-writing of the libellous papers, and by that necessary accouplement, to bind that chain of evidence against the defendant, which without that necessary accouplement would have been unconnected and imperfect. Either the coupling together the two pieces of evidence was necessary, or it was not. If it were necessary, (and the Chief Justice is re ported to have said it was) then the proof would have been defective without that, which was necessary to its perfection. And if it were so necessary, then the defendant could not have been convicted without it. And if he could not have been convicted without it, then he was convicted upon the admission of evidence, which the Chief Justice is reported to have declared upon its admission, (p. 33,) had nothing in it to affect the defendant, and did not signify a farthing. Hence this general rule of the law of England may be inferred. That a party prosecuted, may be convicted by the NECESSARY ACCOUPLEMENT of evidence, which in one part has nothing in it to affect the defendant, and does not signify a farthing. Such is the state (as it is reported) of the law of England. Another singular principle in the law of England, may be discovered from reading the part of the evidence of Mr Giffard, as it is reported in p. 105. Mr. Giffard having said, that he held an office in the revenue, but was turned out of it by

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wicke, both prosecutors. It ought moreover not to be forgotten, that some delicate impediments

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Lord Hardwicke, was asked why? He answered by saying, for
that being a Protestant, he had moved a petition to the Imperial
Parliament, praying them to sustain the King and Constitution.
Upon this evidence, the Chief Justice (as it is reported, p. 12.)
made the following comment. "It is a libel on that noble Lord's
character to suppose
there can be truth in such a statement.”
Hence it follows in fact, that any person then in Court, who
might for a moment even mentally have supposed Mr. Giffard's
evidence to have been true, was guilty of a libel, by the solemn
decision of a trial at bar in the Court of King's Bench, Hence
the following general rule of the law of England, appears to
have been then solemnly established. That a mere supposition
(which includes, as well an internal cogitation, as an outward
expression either by words or writing) may be a libel: and that
he, who has his hands tied behind his back, and a gag put into
his mouth, may, if he should suppose (or cogitate) co instanti be
a libeller. But if the solemn decision (as it is reported) of the
King's Bench upon this last point be historically coupled with
subsequent events, it will afford no favourable comment on the
existing law of England. For in the very session of parliament,
which succeeded the time of this trial, the Earl of Hardwicke
upon some charges having been made in debate in Parliament
relative to the above mentioned dismission of Mr. Giffard, caused
the Lords to be summoned; and upon their meeting did pub-
licly state his own conduct, and explicitly admit, that he had so
dismissed Mr. Giffard for the very reason as assigned by Mr.
Giffard; namely, for having moved such a petition, The noble
Earl, however added, that he had caused his pleasure previous to
be intimated to Mr. Giffard, that no such petition should be
moved. The Earl publicly justified his conduct on this identical
fact, as stated in evidence. Hence it follows, that by the law
of England, as it is reported, to have been solemnly ruled on this
occasion, a man may be guilty of a libel by even internally sup
posing, that another man did perform that action, which the per-
former publicly declares he did, and justifies his having done

it.

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